They say that great artists steal, but then again it's nothing but lawsuits if the theft occurs within seventy years of the original artist's death.

When I was about six years old, I read a fantastic novel, the details of which escape me at the distance of years. And mind you, it was a real novel not one of those sixty pages with a bunch of pictures excuses for a children's book that they call novels. The novel had the premise of a couple of middle school kids who managed to bring to life monsters from classic horror. They had Frankenstein's monster, Dracula, and a variety of others following them around. The climax was the protagonist being forced to destroy these monsters, who had become his friends, in order to save the world or some such. It was gut wrenching pathos for a six year old. But it also depended entirely on the cultural body of knowledge surrounding these creatures. The story simply couldn't have worked on the same level with original creations because they wouldn't have embodied the same context. The luck was that those creatures were old enough to be public domain, but due to happenstance, had been kept in the public eye due to generations of films. Most of our cultural baggage doesn't have the same advantage.

With our current magnificent copyright laws, of entire generations passing after an author's death before a work actually passes into the public domain, it can easily be a century after publication that creations are released from a legal stranglehold. For something with as massive and enduring an appeal as The Lord of the Rings, that's isn't necessarily an issue. People will still be reading about Frodo when he finally loses legal protection. But for the mid-level works, the works that blow our mind and shape our thinking but aren't quite in that inner circle of works that get passed down from generation to generation, the current state of copyright law perversely guarantees their disappearance from memory. There's not enough demand for more printings, but any author who tried to retell and adapt such a story themselves would get slapped down by lawsuits.

From a certain point of view that forces originality, but I think that's short sighted. Originality is going to happen regardless. Artists have their own things to say. But sometimes they also have things to say to each other, and the interminable decades of copyright extension (that will naturally be extended once again just as soon as Mickey Mouse's expiration creeps a little closer) is effectively killing that dialogue.

There are two exceptions to this. The comic industry has for all its faults, maintained exactly this sort of dialogue by keeping the same titles in print for so many decades. Each generation, Batman is reinterpreted, retold, reshaped, in ways that fiction outside of comics almost never manages to accomplish.

And of course there is also the strange little exception of fan fiction, the exception that proves the rule. By being strictly amateur, and thus gaining a little legal protection, fan fiction also rules out the real professionals, the artists who have immersed their lives in exactly this dialogue, but are legally barred from directly participating in it.

Let's take the example of Tolkien, whose legacy is a fantastic example in a number of ways. First, unlike the pillaging of his father's work that has occurred by Brian Herbert, Christopher Tolkien has long taken a responsible approach towards respectfully parceling out a stream of new and interesting literary material from his late father's notes. And yet the omnipresent scourge of lawyers lurks.

They got in the news last year when they tried to have the self-published novel Mirkwood shut down, and all copies destroyed. The book purported to be both a novel and "an exercise in literary criticism," focused on appropriating and extending The Lord of the Rings to account for the oft-cited lack of female characters in the series.

But our main character, Cadence, is hardly a heroine despite the novel's framing as a response to the almost utter lack of female characters in Tolkien's Lord of the Rings. The entire extent of her agency is in finding a box of papers and carrying them on a train ride. All other meaningful action is performed by two men. The first is a lawyer seeking a payday on the back of those documents, paying for Cadence's hotel and living expenses. The second is a former assistant to Tolkien who spends the novel actually translating the pile of papers into English. So the novel's idea of a heroine is a woman who cannot provide for herself, and who depends on someone else to do the thinking.

But this isn't the place to rip apart this novel, which amounts to little more than ambitious fan fiction. Scathing is one thing, but trashing a work of love that simply isn't up to par with professional work is cruel and beneath us.

The point in this discussion, is that this dialogue about Tolkien is taking place in fan fiction, and even the best of it, which dares the wrath of the attorneys, is not a substitute for our big names taking part in the artistic discussion. Take for example, Jacqueline Carey's fantastic The Sundering, which is a fantasy sequence that amounts to The Lord of the Rings told from the point of view of Sauron, which adds a dense layer of sexual politics to the original series. How much stronger would this work have been, if it could have directly addressed the world of Tolkien instead of being couched in a similar world by legal necessity?

The point isn't that we need to get rid of copyright, but that we need to reevaluate what the endless extensions to it are doing to the creation of art. The purpose of copyright is to protect art so as to encourage it. Legally shielding works for long decades after the death of the artist is only an exercise in preventing art. It prevents the critical mixing and remixing of stories that has only in the last century ceased to be an active part of story telling.

Steven Lloyd Wilson is a hopeless romantic and the last scion of Norse warriors and the forbidden elder gods. His novel, ramblings, and assorted fictions coalesce at www.burningviolin.com. You can email him here.